Recovery of overpaid salary from retired employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued, would be impermissible in law.

JUDGMENT

Bharati Dangre, J -Rule. Rule made returnable forthwith.

2. Heard by consent.

3. The petitioner has approached this Court, praying for quashing and setting aside the impugned action and the order of refixation and recovery of his salary already drawn as ''Head Teacher'' and further praying for refund of the recovered retiral dues. By the impugned order dated 29th December 2016, direction is issued to the respondent no.9 to recover overpayment made to the petitioner for a period of 4 years 11 months. The said order is assailed on the ground that the amount is sought to be recovered after a considerable lapse of time from the date of retirement, and therefore, it cannot be sustained.

4. The petitioner was initially appointed as a Teacher in the respondent no.9 school with effect from 1/8/1990 and subsequently was appointed as "Head Teacher" from 2nd September 1996. The appointment of the petitioner was approved by the competent authority i.e. the Superintendent, Private Primary School, Education Department, MCGM. On 29th February 2016, the petitioner retired on attaining the age of superannuation. The petitioner was paid his regular salary and revised pay scales from time to time. There was no dispute ever raised by the respondent authorities in regard to his appointment as a Head Teacher and he was also paid the salary attached to the said post till his superannuation. Further, the yearly account and audit statement concerning the salary of the concerned staff, including the petitioner and other teachers of the school, have been forwarded to the Accounts department on year to year basis and at no point of time, any shortcomings or irregularity was reported. On his superannuation, with effect from 29th December 2016, the petitioner was entitled for his retiral dues as per the last pay drawn by him on the date of his retirement. However, he was not paid his retiral dues and only a meager amount of Rs.5, 940/ per month came to be released in favour of the petitioner with effect from 1/1/2017. However, no amount has been paid from the month of March 2016 to December 2016 towards his pensionary benefits. All the papers relating to pension were already forwarded by the management of the school in which the petitioner is working to the Education Department of the MCGM six months prior to the retirement. The petitioner was running pillar to post for availing the pensionary benefits, when all of a sudden the impugned communication came to be issued, stating that the petitioner was overpaid for a period of 4 years and 11 months and a recovery is to be effected. The recovery is calculated approximately to the tune of Rs.6, 00, 000/ (Rupees Six lakhs). The petitioner was shocked to receive the said communication when there was no issue about the post on which he was appointed, and it was duly approved by the respondent authorities. Being aggrieved by the said action, the petitioner has approached this Hon''ble Court seeking relief of his pensionary benefits. Learned counsel for the petitioner would submit that recovery of the petitioner of an amount, after approximately period of two years of his retirement, is highly arbitrary and high handed. He would submit that while issuing the said order, no opportunity was afforded to the petitioner to show any cause and petitioner had a legitimate expectation that at the fag end of his career, he would be enjoying the pensionary benefits due to him for which he is now held to be disentitled. The learned counsel for the petitioner places reliance on the judgment of the Hon''ble Apex Court in case of State of Punjab and Haryana and ors Vs. Rafiq Masiha (White Washer) , (2015) 4 SCC 334, to advance his submission that the recovery of the amount paid in excess without fault of the recipient should be avoided and the learned counsel would submit that the same is impermissible.

5. Advocate Shri Pradeep Patil, learned counsel for the respondent would submit that since an amount was paid in excess